Plea for wider DOMA review (UPDATED)

Posted Wed, July 25th, 2012 12:43 am by Lyle Denniston

UPDATED Wednesday 10:31 a.m. Massachusetts’ conditional cross-petition can be read here. It raises the two new issues that other cases do not present: the constitutionality of DOMA Section 3 under the Tenth Amendment and under the Spending Clause. It has been docketed as 12-97, Commonwealth of Massachusetts v. Department of Health & Human Services.

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Massachusetts officials are using two legal maneuvers in an attempt to get the Supreme Court to take on more constitutional issues surrounding the federal Defense of Marriage Act. The state has filed its own petition for review of the First Circuit Court ruling that it won, in part. In addition, it has filed a brief urging the Court to hear the federal government’s case against DOMA’s constitutionality. (That brief is here; the separate petition will be posted on this blog when it becomes available.)

DOMA is a 1996 law that defines marriage, under some 1,000 federal laws, as limited to the legal union of a man and a woman. The law thus denies a host of federal benefits to same-sex couples who are legally married under laws in their own states. If one or both of Massachusetts’s legal moves succeeds, the Court could be examining not only the question of whether DOMA’s definition of marriage is a form of discrimination, but also the additional issues of whether DOMA violates the rights of states under the Tenth Amendment, and goes beyond Congress’s power to add conditions to federal benefits that involve federal funds.

In the brief filed Tuesday, state Attorney General Martha Coakley said that, even though DOMA’s denial of benefits was struck down in lower courts, the state “recognizes that DOMA’s unconstitutionality is a question of national significance and is likely to be addressed by this Court at some point.” It is important, the brief added, that the Court examine DOMA in a case that confronts all constitutional questions — discrimination under the Fifth Amendment, intrusion upon state powers protected by the Tenth Amendment, and going beyond Congress’s legitimate powers under the Constitution’s Spending Clause.

The state officials appear to believe that the Court could reach the Tenth Amendment and Spending Clause cases in the case taken to the Court by the Obama Administration (Health & Human Services Department v. Massachusetts, docket 12-15) as additional reasons for upholding the First Circuit ruling against DOMA’s Section 3 (the benefits ban) But the new Massachusetts brief noted that state officials last Friday filed their own cross-petition “out of an abundance of caution,” should the Court find that a competing petition was required in order to put those other issues squarely before the Justices.

The Obama Administration’s challenge relies upon the guarantee of legal equality under the Fifth Amendment’s Due Process Clause. That has been the major focus of most of the challenges to DOMA’s Section 3, in courts across the country. Massachusetts so far is the only state to have added the Tenth Amendment and Spending Clause challenges. Those succeeded only in part in lower courts.

The state’s argument under the Tenth Amendment is that Congress’s attempt to give a national definition to marriage, binding on all states for purposes of the eligibility of married same-sex couples to benefits and the eligibility of states to receive federal funds, amounts to “an impermissible federal intrusion” into the state’s traditional power to regulate marriage. In a state like Massachusetts, which does recognize same-sex marriage, the state brief argued, DOMA divides marriage in two ways: one way for opposite-sex spouses, treating them as legitimately married, but in a different way for same-sex spouses, treating them as “federally single.” Such an intrusion into state regulation of domestic relations, the brief contended, “is unprecedented in the nation’s history.”

The state’s argument under the Spending Clause has two strands to it. First, it argued that DOMA imposes a condition on Massachusetts’ eligibility for the Medicaid program of medical care for the elderly and disabled and for the federal program of grants to state-operated cemeteries, with that condition requiring the state to engage in discrimination in order to receive federal money. Putting such a condition on states like Massachusetts, the state asserted, goes beyond Congress’s power under the Spending Clause. Second, it argued that the condition is beyond Congress’s powers under that Clause because the treatment of legally married same-sex couples as essentially not married bears no relationship to the reasons Congress provides funds under the Medicaid and the burial benefits programs.

The separate Massachusetts petition filed last Friday is a back-up gesture that seeks to assure that these added challenges are definitely up for review along with the discrimination claim that the Obama Administration has made.

Since neither the Administration, nor Massachusetts, nor the same-sex couples that also challenged DOMA’s Section 3 will be providing any support for that provision, the Administration has urged the Court to allow DOMA’s ban to be defended by the Republican leaders of the U.S. House of Representatives, who fully support DOMA. The GOP lawmakers have come to the defense of DOMA in the courts since the Administration last year changed its mind and began arguing that the benefits ban is unconstitutional. Massachusetts told the Court Tuesday that it agrees that the House GOP should be allowed to defend DOMA before the Justices. (The House GOP leaders have their own petition pending, Bipartisan Legal Advisory Group v. Gill, docket 12-13, but it would not be necessary for the Court to grant review of that case in order to let the GOP lawmakers join in the review.)

The Administration also has asked the Court to grant review in another DOMA case, Office of Personnel Management v. Golinski, docket 12-16. In that case, the government is seeking review of a ruling by a federal District judge in California, who struck down DOMA’s Section 3. Review by the Justices would bypass the Ninth Circuit Court, where that case is already pending. UPDATE: The California woman involved in that case, federal court employee Karen Golinski, on Wednesday urged the Court to bypass the Circuit Court and review the case, saying it presents the constitutional issues in a clearcut way without secondary issues.

In addition, civil rights organizations have asked the Court bo bypass the Second Circuit Court, to review another DOMA challenge — Windsor v. U.S. (deocket 12-63). In that case, a federal District judge in New York has nullified Section 3.

Not yet filed at the Court, but due there soon, is a case involving the constitutionality of California’s “Proposition 8,” a flat ban on same-sex marriage in that state.

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On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

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On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.